[Cite as Calkins v. Calkins, 2016-Ohio-1297.]

IN THE COURT OF APPEALS 

ELEVENTH APPELLATE DISTRICT 

GEAUGA COUNTY, OHIO 

LINDSAY NOBLE CALKINS, : O P I N I O N 

 Plaintiff-Appellee/ 

 Cross-Appellant, 

: 

CASE NOS. 2014-G-3203 

: 2014-G-3218

 - vs - 

: 

BENJAMIN CALKINS, et al., 

: 

 Defendant-Appellant/ 

 Cross-Appellee. : 

Civil Appeals from the Geauga County Court of Common Pleas. 

Case No. 11 DC 000555. 

Judgment: Affirmed. 

Lynn B. Schwartz, Lynn B. Schwartz Attorney at Law LLC, 31100 Pinetree Road, Suite 

225, Pepper Pike, OH 44124; Stanley Morganstern, 28482 North 77th Street, 

Scottsdale, AZ 85266 (For Plaintiff-Appellee/Cross-Appellant). 

Edgar H. Boles, Dinn, Hockman & Potter, LLC, 5910 Landerbrook Drive, Suite 200, 

Cleveland, OH 44124 (For Defendant-Appellant/Cross-Appellee). 

TIMOTHY P. CANNON, J. 

{¶1} This matter emanates from a judgment of the Geauga County Court of 

Common Pleas granting a divorce to Benjamin Calkins and Lindsay Noble Calkins and 

dividing their marital estate. Benjamin (hereinafter “Husband”) filed an appeal from this 
 2

judgment, and Lindsay (hereinafter “Wife”) filed a cross-appeal. This court consolidated 

the appeals for all purposes. For the following reasons, the judgment is affirmed. 

{¶2} The parties were married in 1981 and had four children: three were 

emancipated adults at the time of the divorce proceeding; one was a minor child, but is 

now emancipated. Wife earned her Ph.D. and is an Associate Professor and the 

Associate Dean of the School of Business at a university in Cuyahoga County, Ohio. 

Her annual salary is approximately $106,000. Husband is a licensed attorney in Ohio, 

New York, and Washington, D.C. During the marriage, Husband primarily practiced in 

medium- to large-sized law firms. His yearly earnings from 1999 through 2005 

averaged approximately $223,000. In 2006, he joined a law firm as a partner, where his 

annual salary was $240,000. He left that firm in 2008 and was hired “of counsel” for 

another firm at which he had no guaranteed salary. His gross annual income for the 

years 2008 through 2011 was as follows: $57,505; $56,227; $34,494; and $13,018. 

{¶3} In 2011, Wife filed an action for divorce against Husband, who filed an 

answer and counterclaim. Wife joined three entities as defendants—Shady Hill Farms, 

Ltd.; K-2000 Holdings, Inc.; and Chagrin Valley Land & Livestock Co.—none of which 

are parties to this appeal. 

{¶4} A contested trial was held before a magistrate on December 4, 2012. The 

court heard testimony from Wife, Husband, and their son. One point of contention 

between the parties concerned Husband’s farming activities. Husband was raised on a 

family farm and continues to have an interest in farming. Throughout the marriage, 

Husband made an increasing amount of expenditures in various farming operations, 

which operated consistently at a loss. Wife claims most of the expenditures were made 
 3

without her knowledge or consent. She further contends Husband’s farming operation 

was a hobby and a form of financial misconduct; Husband claims it was a business. 

{¶5} Shady Hill Farms, Ltd. was formed around 1996 and has sustained great 

tax losses since 2003. Wife testified she repeatedly voiced her concerns regarding the 

size and expenditures of the farm due to the fact that it was not producing any income. 

During litigation, Wife learned Husband had hired full-time, live-in help on the farm, 

contrary to her expressed wishes. 

{¶6} K-2000 Holdings, Inc. is a real estate holding company created by 

Husband in the late 1990s for the purpose of purchasing a parcel of land situated 

across the street from the parties’ marital residence. On the property is a farmhouse, 

garage, barn, and outbuildings. Wife testified that Husband told her the property had 

been purchased by a client who was permitting Husband to use it. Husband began 

putting some of his sheep on the property and, against Wife’s wishes, hired full-time, 

live-in employees. In 2005, Wife apparently voiced her concerns that Husband was 

using the property as though he owned it; Husband then told Wife he had been paying 

the owner $1500 per month under a rent-to-own agreement since 2000. Wife testified 

that Husband took out two mortgages for the property in the name of K-2000 without her 

knowledge. In 2009, Husband and Wife jointly refinanced the property which increased 

the mortgage debt by approximately $100,000. Wife testified that she agreed to the 

mortgage because she believed she would receive 50% of the K-2000 stock; however, 

tax returns for the years 2010 and 2011 show that Husband still owned 100% of the 

stock. Wife also testified that Husband timbered the property in 2011 without her 
 4

knowledge and received over $26,000 for the lumber. She claims she did not receive 

any of the proceeds. 

{¶7} Other points of contention involved various assets and debts accumulated 

by Wife and Husband, many of which were depleted by Husband during the marriage 

without Wife’s knowledge. The parties maintained separate finances and bank 

accounts. They both accumulated retirement benefits through their respective 

employment. Wife testified that Husband had approximately $500,000 in retirement 

benefits in 2008. During litigation, Wife learned that Husband had nearly depleted his 

retirement assets, which caused them to incur tax penalties of approximately $25,000. 

Wife further testified that Husband took out approximately $31,000 in loans on a life 

insurance policy and on a 401(k) account. Husband also received settlements and 

judgments that totaled over $87,000, which he deposited into his personal accounts. 

Wife claimed she did not become aware of these loans and proceeds until the divorce 

proceedings. 

{¶8} A great deal of testimony also concerned whether the couple’s joint tax 

returns were made available to Wife or whether they were concealed by Husband. In 

addition, there was a dispute over whether Wife was consulted by Husband before he 

obtained Parent Plus student loans for their children in an amount that exceeded 

$300,000. 

{¶9} The magistrate issued her decision following trial and recommended the 

parties be granted a divorce on the grounds of incompatibility, that their shared 

parenting plan be approved and incorporated, and that their marital assets and debts be 
 5

divided. The magistrate also concluded, based on the following facts, that Husband had 

committed financial misconduct: 

a. He willingly continued to maintain and expend funds on Shady 

Hills, Inc., keeping the fact that the farm was failing from Plaintiff 

to the extent of preventing her from seeing joint tax returns and 

giving her fake/draft tax returns showing the losses to be less 

than they were. 

b. He willingly depleted $425,000 of retirement assets without 

Plaintiff’s knowledge, and without a credible explanation of what 

the funds were used for. 

c. He amassed credit card debt in excess of $90,000 without 

Plaintiff’s knowledge. 

d. He incurred Parent Plus college loans in excess of $300,000 

without Plaintiff’s knowledge. 

e. He concealed, and appropriated for his own use, the following 

marital assets without giving any credible justification for what 

the money was used: Nationwide Insurance theft claim funds in 

the amount of $37,500, timber funds in the amount of $26,500, 

Rising Phoenix settlement funds in the amount of $37,500, 

DeClemente Judgment Funds in the amount of $49,720, Taft 

401(k) loan in the amount of $14,090. The total $182,753.17. 

{¶10} Husband filed objections to the magistrate’s decision, arguing the financial 

misconduct determination should not be adopted because Wife had not met her burden 

of proof. In its entry granting the parties a divorce, the trial court agreed that Wife had 

not proved Husband committed financial misconduct. However, the court agreed with 

and approved the magistrate’s decision regarding the division of assets and debts. In 

part, the trial court stated that although it did not find Wife proved Husband engaged in 

financial misconduct, “the Court does find that [Husband’s] actions in regards to his 

retirement accounts, timber sales proceeds, insurance claims, and other funds warrant 

a division of property that is not equal in monetary value.” 
 6

{¶11} The trial court made an award of marital assets to Wife in the amount of 

$959,729.31 and an award or credit of marital assets to Husband in the amount of 

$861,755.17. It also held Husband solely responsible for payment of all marital debts, 

an amount in excess of $460,000, which included the Parent Plus student loans. The 

mortgage loan secured by the marital residence became Wife’s sole obligation, and the 

mortgage loan secured by the K-2000 property became Husband’s sole obligation. No 

spousal support was awarded to either party, but Husband was ordered to pay child 

support for their minor child until she turned 18 or graduated high school. The trial court 

directed that within 30 days from entry of the judgment, Wife and Husband “shall 

execute all deeds and other documents required to effectuate this judgment.” 

{¶12} Husband filed a timely appeal and asserts the following five assignments 

of error for our review: 

[1.] The trial court erred and abused its discretion to the prejudice of 

Appellant in its division of property in grossly unequal amounts in 

Appellee’s favor, finding said unequal division equitable because 

Appellant ‘acted in such a way that significant marital assets were 

converted or dissipated in conducting his law practice and 

operating a family farm on the marital residence premises without 

Plaintiff’s meaningful participation or knowledge,’ and ‘with little to 

no input from’ Appellee. 

[2.] The trial court erred and abused its discretion to the prejudice of 

Appellant in its division of property in grossly unequal amounts in 

Appellee’s favor finding said unequal division equitable upon the 

premise that there were ‘funds and marital property that cannot be 

accurately traced or accounted for because of Defendant’s actions’ 

where the subject transactions were years prior to the divorce and 

during the marriage, in the course of Appellant’s law business and 

farming business, and the matter of their tracing and accounting 

was Plaintiff-Appellee’s burden of proof at trial. 

[3.] The trial court erred and abused its discretion to the prejudice of 

Appellant in allocating to Appellant in the division of property 100% 

of the parties’ marital debt including 100% of the parties’ children’s 
 7

college loans of $332,881 upon Plaintiff-Appellee’s theory that she 

had no participation in nor knowledge of such college loan debt. 

[4.] The trial court erred and abused its discretion to the prejudice of 

Appellant in its division of property in grossly unequal amounts in 

Appellee’s favor in finding that Appellant’s operation of a family 

farm on the parties’ residence at a tax deductible financial loss 

resulted in or was a form of conversion or dissipation of marital 

assets or was sanctionable against Appellant’s property division 

because Appellee maintained that funds and marital property 

transactions during the marriage could not be accurately traced or 

accounted for at trial. 

[5.] The trial court erred and abused its discretion to the prejudice of 

Appellant in its division of property in grossly unequal amounts in 

Appellee’s favor upon the premise that operating a family farm on 

the marital residence premises at a loss is some form of conversion 

or dissipation of marital assets as such farming operations were 

carried out ‘without [the other spouse’s] meaningful participation or 

knowledge’ and with ‘little to no input from [the spouse],’ and that 

said farming operations thereby became an equitable basis for an 

unequal division of property or the grounds for a finding of financial 

misconduct warranting an unequal division of property. 

{¶13} Wife also filed a timely cross-appeal and asserts the following two 

assignments of error for our review: 

[1.] The trial court committed prejudicial error in failing to find 

defendant-appellant Benjamin Calkins guilty of financial 

misconduct. 

[2.] The trial court committed prejudicial error in failing to require the 

parties to refinance. 

{¶14} For ease of discussion, we initially consider Wife’s first assignment of 

error. Wife argues the trial court erred in failing to adopt the magistrate’s conclusion 

that Husband committed financial misconduct. 

{¶15} “If a spouse has engaged in financial misconduct, including, but not limited 

to, the dissipation, destruction, concealment, nondisclosure, or fraudulent disposition of 

assets, the court may compensate the offended spouse with a distributive award or with 
 8

a greater award of marital property.” R.C. 3105.171(E)(4). “[W]hile R.C. 

3105.171(E)(3) does not set forth an exclusive listing of acts constituting financial 

misconduct, those acts that are listed * * * all contain some element requiring wrongful 

scienter. Typically, the offending spouse will either profit from the misconduct or 

intentionally defeat the other spouse’s distribution of marital assets.” Hammond v. 

Brown, 8th Dist. Cuyahoga No. 67268, 1995 Ohio App. LEXIS 3975, *9 (Sept. 14, 

1995); see also Gentile v. Gentile, 8th Dist. Cuyahoga No. 97971, 2013-Ohio-1338, 

¶55. The burden of proving financial misconduct is on the complaining party. Smith v. 

Emery-Smith, 190 Ohio App.3d 335, 2010-Ohio-5302, ¶50 (11th Dist.). 

{¶16} “‘The time frame in which the alleged misconduct occurs may often 

demonstrate wrongful scienter, i.e., use of marital assets or funds during the pendency 

of or immediately prior to filing for divorce.’” Lindsay v. Lindsay, 6th Dist. Sandusky No. 

S-11-055, 2013-Ohio-3290, ¶21, quoting Jump v. Jump, 6th Dist. Lucas No. L-00-1040, 

2000 Ohio App. LEXIS 5565, *12-13 (Nov. 30, 2000). In addition, an awareness of a 

spouse’s wrongdoing during the marriage may weigh against a finding of financial 

misconduct. See, e.g., Tustin v. Tustin, 9th Dist. Summit No. 27164, 2015-Ohio-3454, 

¶45; Grow v. Grow, 12th Dist. Butler Nos. CA2010-08-209, CA2010-08-218, & CA2010-

11-301, 2012-Ohio-1680, ¶104. Another consideration is whether the spouse made 

“critical and unilateral decisions concerning the parties’ retirement funds and other 

assets in anticipation of his divorce.” Smith v. Smith, 9th Dist. Summit No. 26013, 2012-

Ohio-1716, ¶21. 

{¶17} We note there is some discrepancy among Ohio appellate courts as to the 

appropriate standard of review in this situation. Some courts hold that a finding of 
 9

financial misconduct, as well as the distributive award, is within the trial court’s 

discretion. However, as a finding of financial misconduct is a legal determination, it 

must be supported by the weight of competent, credible evidence. We take this 

opportunity, therefore, to clarify the standard of review: While a trial court enjoys broad 

discretion in deciding whether to compensate one spouse for the financial misconduct of 

the other, the initial finding of financial misconduct must be supported by the manifest 

weight of the evidence. Davis v. Davis, 11th Dist. Geauga No. 2011-G-3018, 2013-

Ohio-1118, ¶77; Emery-Smith, supra, at ¶50. Under this standard, the reviewing court 

must consider all the evidence in the record, the reasonable inferences, and the 

credibility of the witnesses to determine whether the trier of fact clearly lost its way and 

created such a manifest miscarriage of justice that the decision must be reversed. 

State v. Thompkins, 78 Ohio St.3d 380, 387 (1997); Smith v. Smith, 11th Dist. Geauga 

No. 2013-G-3126, 2013-Ohio-4101, ¶42, citing Eastley v. Volkman, 132 Ohio St.3d 328, 

2012-Ohio-2179. 

{¶18} Here, the record establishes Wife was aware of the farming operation 

losses for over a decade before she filed for divorce. Wife’s exhibits also reveal her 

awareness of other financial matters during the marriage, as she consulted 

professionals who advised her to take immediate action over seven years before 

litigation commenced. There is no evidence that Husband made critical and unilateral 

decisions concerning marital assets in anticipation of divorce. The time frame of the 

events at issue, some of which occurred during 2011 but many of which began years 

prior to the divorce complaint, supports the trial court’s decision that Husband’s actions 

were not committed with wrongful scienter. 
 10

{¶19} The weight of the evidence supports the conclusion that Wife did not meet 

her burden of establishing Husband engaged in financial misconduct under these 

circumstances. Accordingly, we conclude the trial court’s finding that Husband did not 

engage in financial misconduct was not against the manifest weight of the evidence. 

{¶20} Wife’s first assignment of error is without merit. 

{¶21} We next jointly consider Wife’s second assignment of error and Husband’s 

five assignments of error, as they all argue the trial court’s division of marital property 

and marital debt was an abuse of discretion. Whether the assets and liabilities 

accumulated during the course of the marriage were marital or separate is not at issue 

in this appeal: the trial court’s determination that all of the assets and debts it divided 

were marital has not been assigned as error. 

{¶22} A trial court is vested with broad discretion when fashioning a division of 

both marital property and marital debt. Dilley v. Dilley, 11th Dist. Geauga No. 2010-G2957, 2011-Ohio-2093, ¶16; Onyshko v. Onyshko, 11th Dist. Portage No. 2008-P-0035, 

2010-Ohio-969, ¶43. “However, a trial court’s discretion is not unbridled. The award 

need not be equal, but it must be equitable. A reviewing court will not substitute its 

judgment for that of the trial court unless the trial court’s decision is unreasonable, 

arbitrary or unconscionable.” Bisker v. Bisker, 69 Ohio St.3d 608, 609 (1994) (internal 

citations omitted). “When applying this standard of review, we must view the property 

division in its entirety, consider the totality of the circumstances, and determine whether 

the trial court abused its discretion when dividing the spouses’ marital assets and 

debts.” Baker v. Baker, 4th Dist. Washington No. 07CA24, 2007-Ohio-7172, ¶28, citing 

Briganti v. Briganti, 9 Ohio St.3d 220, 222 (1984). 
 11

{¶23} A potentially equal division is to be the starting point in determining an 

equitable distribution of property. See Cherry v. Cherry, 66 Ohio St.2d 348 (1981), 

paragraph one of the syllabus. If an equal division would be inequitable, R.C. 

3105.171(C)(1) provides that “the court shall not divide the marital property equally but 

instead shall divide it between the spouses in the manner the court determines 

equitable. In making a division of marital property, the court shall consider all relevant 

factors, including those set forth in division (F) of this section.” The division (F) factors 

are as follows: 

(1) The duration of the marriage; 

(2) The assets and liabilities of the spouses; 

(3) The desirability of awarding the family home, or the right to 

reside in the family home for reasonable periods of time, to the 

spouse with custody of the children of the marriage; 

(4) The liquidity of the property to be distributed; 

(5) The economic desirability of retaining intact an asset or an 

interest in an asset; 

(6) The tax consequences of the property division upon the 

respective awards to be made to each spouse; 

(7) The costs of sale, if it is necessary that an asset be sold to 

effectuate an equitable distribution of property; 

(8) Any division or disbursement of property made in a separation 

agreement that was voluntarily entered into by the spouses; 

(9) Any retirement benefits of the spouses, excluding the social 

security benefits of a spouse except as may be relevant for 

purposes of dividing a public pension; 

(10) Any other factor that the court expressly finds to be relevant 

and equitable. 
 12

{¶24} Husband argues the trial court erred to his prejudice in dividing marital 

assets and debts in grossly unequal amounts in Wife’s favor. The unequal division was 

recommended by the magistrate due to a finding of financial misconduct. As noted, the 

trial court did not agree with this finding. As a result, Husband asserts that by adopting 

the magistrate’s recommendation as to division of property while finding no financial 

misconduct, the trial court made an award that is not only unequal but also inequitable. 

{¶25} In its conclusions of law, the magistrate stated that Wife has proven 

Husband committed financial misconduct. The decision goes on to state that, “[u]nder 

the circumstances, it is not appropriate or equitable that the marital assets and debt be 

divided equally, [and Wife] should be granted a larger award of the marital estate.” The 

trial court, on the other hand, found that Wife did not prove Husband engaged in 

financial misconduct. As stated above, we affirm this decision. The trial court did, 

however, adopt the magistrate’s recommendation as to an unequal division of marital 

property because it found Husband responsible for farming losses, depletion of his 

retirement account, dissipation of numerous other marital assets, and accumulation of 

significant debt without Wife’s knowledge. In support of its unequal division, the trial 

court specifically stated the following: 

The Court does find that [Husband’s] actions in regards to his 

retirement accounts, timber sales proceeds, insurance claims, and 

other funds warrant a division of property that is not equal in 

monetary value. 

Another factor that the Court feels is worthy of consideration is the 

history of those parties in handling marital finances. Each of the 

parties had his or her areas of responsibility for payment of marital 

expenses and debts that were to be paid from each party’s income. 

Clearly, the sheep farming business was within [Husband’s] area of 

responsibility. The farming operation was a business, it was not a 
 13

hobby; but, it was Defendant’s business. Although Plaintiff may 

have indirectly benefitted from claims of losses or possibly from 

CAUV real property tax reductions, there is no question that 

Defendant ran the farming operation with little to no input from his 

wife. Even when the parties’ adult son became involved in the 

farming operations, the son’s involvement was done in conjunction 

with [Husband], not both parties. 

Because of [Husband’s] lack of accounting regarding retirement 

funds, insurance proceeds, settlement proceeds, and receipts from 

timber sales, it is difficult to determine what proceeds were used to 

pay marital debts, living expenses, or farming expenses. In 

determining an appropriate and equitable division of assets and 

liabilities, the Magistrate and this Court cannot rely upon 

[Husband’s] accounting to [Wife’s] detriment. 

This Court repeatedly advises jurors that issues are not to be 

determined on the number of witnesses or exhibits, but upon the 

quality of the evidence presented. Despite that, it must be noted 

that in this matter [Wife] offered seventy-eight exhibits concerning 

the parties’ finances; contrasted to [Husband’s] three. It must also 

be noted that [Husband’s] testimony is replete with instances of 

forgetfulness or confusion regarding what happened to receipts, 

loan proceeds, withdrawals from retirement, etc. 

{¶26} The trial court awarded a total of $959,729.31 in marital assets to Wife: 

the marital residence, with a net value of $426,406; and various accounts and funds 

worth $533,323. The trial court awarded or credited a total of $861,755.17 in marital 

assets to Husband: the K-2000 property, with a net value of $217,969; Shady Hills 

Farm, worth $55,820; proceeds from the sale of timber in an amount of $26,200; 

judgments, settlements, and insurance claims worth $118,535; and various other assets 

worth $443,231. Husband notes that most of the liquid assets awarded to him no longer 

exist. However, Husband presented little or no explanation regarding what he did with 

the liquid assets he had accumulated. This was noted by the trial court in its ruling on 

the objections to the magistrate’s decision. 
 14

{¶27} The court determined Husband should also be held solely responsible, 

with the exception of the mortgage on the marital residence, for all of the marital debt, 

which totaled over $461,000 plus the amount, if any, Husband owes his family. 

Included in this debt was $332,881 in Parent Plus student loans for the parties’ children, 

which the trial court classified as marital debt. 

{¶28} The fact that there is an extreme disparity in awards, primarily due to the 

sole allocation of the Parent Plus loans to Husband, does not automatically establish an 

abuse of discretion by the trial court. The trial court based its unequal division of 

property on factors it found to be “relevant and equitable,” pursuant to R.C. 

3105.171(F)(10). Under the circumstances of this case, therefore, we find the trial court 

did not abuse its discretion in its division of the marital estate. 

{¶29} Husband’s assignments of error are without merit. 

{¶30} Finally, Wife argues in her second assignment of error that the trial court 

erred to her prejudice in failing to require the parties to refinance the existing mortgages 

on the marital residence and the K-2000 property. We do not agree. 

{¶31} R.C. 3105.171(F)(5) provides that the trial court is to consider the 

“economic desirability of retaining intact an asset or an interest in an asset” when 

making a division of marital property. In addition, “R.C. 3105.171(J) empowers a trial 

court to order a spouse to refinance marital property allocated to the spouse to achieve 

an equal (or equitable) division of the property.” Wood v. Wood, 10th Dist. Franklin No. 

10AP-153, 2011-Ohio-679, ¶20, citing Baker, supra, at ¶38. 

{¶32} In her decision, the magistrate recommended that the marital residence, 

with a net value of $426,406, be awarded to Wife and that the K-2000 property, with a 
 15

net value of $217,969, be awarded to Husband. At the time of litigation, both Husband 

and Wife were signatories on the mortgages of each property. Therefore, the 

magistrate further recommended that “[t]he parties should be responsible for all 

mortgages and expenses related to the real estate awarded to each of them, and 

should remove the other from the respective mortgages and refinance within 6 months.” 

{¶33} In the divorce decree, the trial court stated that Wife “shall be solely 

responsible for payment of the mortgage loan secured by” the marital residence and 

“shall hold [Husband] harmless and indemnify him from any liability for said loan.” 

Likewise, the trial court stated that Husband “shall be solely responsible for payment of 

the mortgage loan secured by” the K-2000 property and “shall hold [Wife] harmless and 

indemnify her from any liability for said loan.” However, the trial court did not order the 

parties to refinance these loans and did not make any reference to the magistrate’s 

recommendation in this regard. 

{¶34} A decision as to whether the parties must refinance their joint mortgages 

is within the trial court’s discretion. See, e.g., Beard v. Beard, 2d Dist. Greene No. 2012 

CA 66, 2013-Ohio-3375, ¶16; Matics v. Matics, 5th Dist. Stark No. 1995CA00114, 1996 

Ohio App. LEXIS 1259, *14 (Mar. 4, 1996). There is nothing in the record that 

demonstrates the trial court’s decision was not based on a proper consideration of the 

R.C. 3105.171(F) factors. We cannot hold, therefore, that the trial court abused its 

discretion. 

{¶35} Wife’s second assignment of error is without merit.

{¶36} For the foregoing reasons, the judgment of the Geauga County Court of 

Common Pleas is affirmed. 
 16

THOMAS R. WRIGHT, J., concurs, 

COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part, with a 

Concurring/Dissenting Opinion. 

____________________ 

COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part, with a 

Concurring/Dissenting Opinion. 

{¶37} I agree that Husband’s assignments of error are not well-taken and that 

Wife’s first assignment of error on cross-appeal is without merit. However, I believe 

Wife’s second assignment of error on cross-appeal has merit. Therefore, I concur in 

part and dissent in part. 

{¶38} In her second assignment, Wife alleges the trial court erred in failing to 

require the parties to refinance the mortgages each is required to pay. 

{¶39} Since a trial court has broad discretion in dividing marital property, a 

reviewing court will not substitute its judgment for the trial court’s unless the trial court 

has abused its discretion. Bisker v. Bisker, 69 Ohio St.3d 608, 609 (1994). Regarding 

this standard, we recall the term “abuse of discretion” is one of art, connoting judgment 

exercised by a court which neither comports with reason, nor the record. State v. 

Ferranto, 112 Ohio St. 667, 676-678 (1925). An abuse of discretion may be found when 

the trial court “applies the wrong legal standard, misapplies the correct legal standard, 

or relies on clearly erroneous findings of fact.” Thomas v. Cleveland, 176 Ohio App.3d 

401, 2008-Ohio-1720, ¶15 (8th Dist.). 
 17

{¶40} In the instant matter, the record establishes that K2000 was solely owned 

by Husband. Husband purchased the 11497 Music Street property over time, through 

the corporation and without Wife’s knowledge. Husband had taken two separate 

mortgages on the property in 2003 and 2007 without Wife’s knowledge. In 2009, Wife, 

believing she would receive a 50 percent interest in K2000, agreed to sign the mortgage 

document. The property was refinanced and the mortgage debt was increased by 

approximately $100,000. Wife and Husband signed personally. The parties stipulated 

that the appraised value of the property, consisting of almost 52 acres, is $385,000 and 

the current mortgage balance is $167,031. The property was designated as a marital 

asset. 

{¶41} The 11497 Music Street property, in the amount of $217,969, was 

awarded to Husband, less the mortgage. The 11510 Music Street property across the 

street, in the amount of $426,406, was awarded to Wife, less the mortgage. In her 

decision, the magistrate recommended that “[t]he parties should be responsible for all 

mortgages and expenses related to the real estate awarded to each of them, and 

should remove the other from the respective mortgages and refinance within 6 months.” 

{¶42} In the divorce decree, the trial court stated: 

{¶43} “[Wife] shall be solely responsible for payment of the mortgage loan 

secured by 11510 Music St., Newbury Township, Ohio, and [Wife] shall hold [Husband] 

harmless and indemnify him from any liability for said loan. 

{¶44} “[Husband] shall be solely responsible for payment of the mortgage loan 

secured by 11497 Music St., Newbury Township, Ohio, and [Husband] shall hold [Wife] 

harmless and indemnify her from any liability for said loan.” 
 18

{¶45} However, the trial court, through inadvertence or purposely, made no 

mention of the refinancing recommendation made by the magistrate and did not order 

the parties to refinance. Wife claims this was error and an abuse of the trial court’s 

discretion. Wife maintains that she will be “continuously exposed to Husband’s 

economic failures” and that her “credit standing will remain in jeopardy and continued 

litigation to enforce the save harmless provisions of the Judgment most likely will occur.” 

Upon review, both Wife and Husband have the ability to refinance the mortgages each 

is to pay. This writer agrees with Wife that the trial court erred in failing to order the 

parties to refinance. 

{¶46} R.C. 3105.171(F)(5) states: “In making a division of marital property and in 

determining whether to make and the amount of any distributive award under this 

section, the court shall consider * * * [t]he economic desirability of retaining intact an 

asset or an interest in an asset[.]” 

{¶47} “There is no bright line as to the number of months for refinancing that 

would constitute an abuse of discretion. In reviewing the facts of appellate court divorce 

opinions, it seems that it is common for trial courts to permit 6 months or 12 months to 

refinance a home. Stites v. Stites, 2d Dist. No. 25595, 2013-Ohio-4950, ¶1 (6 months); 

Sable v. Sable, 5th Dist. No. 2012CA00230, 2013-Ohio-2635, ¶22 (12 months); Sparks 

v. Sparks, 12th Dist. No. CA2010-10-096, 2011-Ohio-5746, ¶2 (6 months); Shih v. 

Byron, 9th Dist. No. 25319, 2011-Ohio-2766, ¶8 (6 months); Kumpus v. Kumpus, 5th 

Dist. No. 2009CA00106, 2010-Ohio-3960, ¶5 (6 months); Woodland v. Woodland, 7th 

Dist. No. 06BE9, 2007-Ohio-3503, ¶3 (12 months is not unreasonable time to require 

refinancing to be accomplished). However, 48 months and 72 months have also been 
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ordered. Hanifon v. Hanifon, 11th Dist. No. 2004-L-187, 2006-Ohio-332, ¶25 (72 

months given the facts of the case was not unreasonable time to allow refinancing to 

occur); Espenschied v. Espenschied, 5th Dist. No. 2002AP030021, 2002-Ohio-5119, 

¶12 (48 months).” Ramsey v. Ramsey, 7th Dist. Jefferson No. 13 JE 17, 2014-Ohio1227, ¶27. 

{¶48} It is desirable to bring finality to the parties’ marriage by dividing assets 

once and for all. Courts “should attempt to disentangle the parties’ economic 

partnership so as to create a conclusion and finality to their marriage.” Hoyt v. Hoyt, 53 

Ohio St.3d 177, 179 (1990). “‘(W)hen circumstances permit, (trial courts) should strive 

to resolve the issues between the parties so as to disassociate the parties from one 

another or at least minimize their economic partnership.’ [Hoyt,] at 182. But ‘the trial 

court must obtain a result which will preserve the asset so that each party can procure 

the most benefit.’ Id. at 181.” Daniel v. Daniel, 139 Ohio St.3d 275, 2014-Ohio-1161, 

¶13. 

{¶49} In the case at bar, by awarding Husband K2000, it retained that asset, 

including the real estate, intact. See R.C. 3105.171(F)(5). The debt was assigned to 

Husband but there was no order to liquidate the asset. As such, Wife is left in the 

position of being financially open and responsible for the mortgage, without having any 

interest in the asset. The magistrate and trial court both noted Husband’s lack of 

financial responsibility when dealing with marital assets and debt. This writer 

determines the trial court’s failure to include and order the parties to refinance the 

mortgages on the real estate awarded to them is especially prejudicial to Wife. 

Requiring the parties to refinance is mutually beneficial as it furthers the goal of creating 
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a conclusion and finality to their marriage. See Hoyt, supra, at 179; Daniel, supra, at 

¶13. 

{¶50} Upon consideration, this writer would reverse and remand so that the 

divorce decree reflects and orders the parties to be responsible for all mortgages and 

expenses related to the real estate awarded to each of them and that the parties shall 

remove the other from the respective mortgages and refinance within at least 6 months. 

{¶51} Accordingly, because I believe Wife’s second assignment of error on 

cross-appeal has merit, I respectfully concur in part and dissent in part.